This is one of a special series of posts exploring the public law implications of the COVID-19 pandemic. For more information on the Gilbert + Tobin Centre’s work in the area of public law and public health, see here.

BY PETA STEPHENSON AND JONATHAN CROWE

The public health threat posed by COVID-19 has led the Australian states to impose significant restrictions on individual behaviour and freedom of movement.  These restrictions vary according to the current virus ‘hotspots’ and they also vary among the states.

This post examines the mechanisms utilised in Queensland to issue public health directions aimed at curbing the spread of the pandemic. We focus particularly on the extraordinary use of delegated legislation that is exempted from the usual requirements of parliamentary scrutiny and legislative override. We argue that, notwithstanding the important public health goals of these measures, the way they have been implemented poses a significant challenge to the rule of law.

Delegated legislation

The COVID-19 outbreak has resulted in changes to law-making norms and processes to ensure that government can act quickly and effectively to respond to the evolving nature of the emergency. One feature of this changed landscape is the increasing reliance on delegated legislation. Delegated legislation is very common in Australia, but the challenges of COVID-19 have produced notable shifts in both its prevalence and its formal characteristics.

In Australia, the Parliament is the representative body which is conferred with the power to make laws (at both Commonwealth and state and territory levels). The Parliament can, and often does, pass legislation that delegates legislative power to the executive branch. Legislation made by the executive branch under the authority of a primary Act of Parliament is usually called ‘delegated legislation’. The Statutory Instruments Act 1992 (Qld) uses the terms ‘subordinate legislation’ and ‘statutory instruments’.

Importantly, delegated legislation does not need to go through the formal legislative process, which is largely why it is favoured in responding to emergency situations. The specific content of delegated legislation is usually determined by members of the executive branch to whom authority has been delegated. However, this does not mean that the making of delegated legislation is completely unregulated. Normally, it retains some of the core features of primary legislation – it is subject to scrutiny by the Parliament and can be repealed by primary legislation.

In Queensland, as in other Australian jurisdictions, delegated legislation must normally be published and tabled before Parliament. There is a procedure for disallowance by the Parliament, which has the same effect as repeal. These processes are enshrined in ss 47, 49 and 50 of the Statutory Instruments Act.

The use of delegated legislation in Queensland during the COVID-19 outbreak raises three concerns about the way in which it undermines these core features of the legislative process. The first issue relates to the sheer volume of delegated legislation that has been produced and which changes frequently. The second concerns the absence of regular parliamentary procedures to provide oversight of these new laws. And the third relates to the suspension of the normal process of parliamentary override by using so-called ‘Henry VIII’ clauses

Regulating the public health crisis

Key Queensland statutes involved in the COVID-19 response include the Public Health Act 2005 (Qld), the COVID-19 Emergency Response Act 2020 (Qld) and the Disaster Management Act 2003 (Qld). We will focus for the purposes of this post on the first two pieces of legislation.

Queensland was quick to declare both a disaster situation and public health emergency in response to the global outbreak of coronavirus. A ‘disaster situation’ was declared over the whole of Queensland on 22 March 2020 under s 69 of the Disaster Management Act. This contrasts with Victoria, which declared a ‘state of disaster’ on 2 August 2020. In Queensland, the declaration usually lasts for a period of 14 days (s 71) but may be extended by regulation (s 72).

The declaration was initially extended on 2 April 2020 by the Disaster Management (Extension of Disaster Situation – Covid-19) Regulation 2020 (Qld), and has been extended several times since, most recently for 90 days. The declaration of a disaster situation gives members of the state emergency services wide powers to control the movement of persons within, into, out of or around Queensland as a declared area, as well as taking control of property: Disaster Management Act ss 77, 78.

A public health emergency was declared on 29 January 2020. This declaration was made by the Queensland Minister for Health, Steven Miles MP, under s 319 of the Public Health Act. The duration of a declared public health emergency is 7 days: s 322. It can be extended by regulation: s 323. Since the initial declaration, the duration of the emergency has been extended several times by regulation, most recently for 46 days (expiring at 11:59pm on 2 October 2020).

The Public Health Act has been amended several times this year, most notably by the Public Health and Other Legislation (Public Health Emergency) Amendment Act 2020 (Qld) which conferred extensive powers on the Chief Health Officer to issue directions under the new s 362B. These include the power to give directions restricting the free movement of people, restricting contact between persons and any other direction that the Chief Health Officer considers necessary to protect public health.

Because Queensland’s declared public health emergency was extended until 11:59pm on 2 October , the active public health directions have also been extended until that time. A significant number of directions have been made (and amended) by the Chief Health Officer at the time of writing (18 August 2020), including the following:

  • Aged Care Direction (No 9)
  • Border Restrictions Direction (No 11)
  • Hospital Visitors Direction (No 5)
  • Movement and Gathering Direction (No 2)
  • Point of Care Serology Tests Direction
  • Prescribing, Dispensing or Supply of Hydroxychloroquine Direction
  • Protecting Public Officials and Workers (Spitting, Coughing and Sneezing) Direction (No 3)
  • Restricting Cruise Ships from Entering Queensland Waters Direction (No 2)
  • Restrictions on Businesses, Activities and Undertakings Direction (No 5)
  • School and Early Childhood Service Exclusion Direction
  • Seasonal Workers Health Management Plans Direction
  • Self-isolation for Diagnosed Cases of COVID-19 Direction (No 3)
  • Self-quarantine for Persons Arriving in Queensland From Overseas Direction (No 5)

Procedural issues

In a public health emergency, the Chief Health Officers in each state and territory are conferred the powers necessary for them to take charge of public health. (In some states, and at the Commonwealth level, this person is called the Chief Medical Officer.) There are, however, some concerns about these directions, having regard to the rule of law and law-making norms and procedures. These concerns are heightened because the Chief Health Officer is a member of the public service and is not elected and accountable in the same way as Members of Parliament, although the Chief Health Officer does consult with the Premier and Cabinet.

In respect of Queensland, the concerns are as follows. First, the public health directions are unstable, especially the Border Restrictions Direction, which has changed 11 times at the time of writing (18 August). Most recently, New South Wales and the Australian Capital Territory were declared coronavirus hotspots and additional entry restrictions placed on persons from those jurisdictions.

Importantly, Border Restriction No 11 was issued just eight days after Border Restriction No 10, which was issued just four days after Border Restriction No 9. This instability can make it difficult for members of the public (and lawyers) to know what the law is. This is a heightened concern because of the substantial penalties for non-compliance (100 penalty units under s 362D of the Public Health Act, which amounts to $13,345).

A related concern, which has also been raised by Kate Galloway, is the form that these directions take. The Office of Queensland Parliamentary Counsel (OQPC) website is the official repository of Queensland legislation and subordinate legislation, while other notices and declarations are usually published in the Queensland Government Gazette, which notifies the public about government actions.

A remarkable feature of the directions issued by the Chief Health Officer is that they appear on the Queensland Health website, which is authorised under s 362B of the Public Health Act. This is less than ideal as a way of keeping track of the applicable law, particularly given the frequent changes. Recently, the OQPC Website has included a link to these directions on its homepage, but this merely reinforces the contrast with the legislation published formally on that page.

Furthermore, although the directions are binding and enforceable, they are not subject to the normal procedural requirements of subordinate legislation, such as tabling and disallowance under ss 49 and 50 of the Statutory Instruments Act. The reason why the directions are not subject to these procedural requirements seems to be that they are not ‘subordinate legislation’ for the purposes of s 9 of the Statutory Instruments Act, although they are still a type of ‘statutory instrument’ under s 7 of that Act. The directions therefore occupy a liminal status: they have the force of law, but are exempt from the usual scrutiny applying to such measures.

Emergency responses

Similar concerns arise in relation to the COVID-19 Emergency Response Act (‘COVID-19 Act’). The COVID-19 Act entered into force on 23 April 2020. This Act is a type of ‘omnibus Act’ that amends a significant number of existing Queensland Acts and regulations. The COVID-19 Act delegates wide power to Ministers and executive officials to make regulations modifying legislation relating to physical contact between persons, document requirements, statutory time limits, residential and retail leases, court and tribunal proceedings and the health industry generally.

This ‘legislative modification framework’ approach is considered justified given the urgent and critical nature of the public health emergency. The rationale behind these provisions is that Ministers and executive officials can take immediate executive action to mitigate the spread of COVID-19 in the community. However, concerns arise about the lack of parliamentary oversight of these regulations.

There are two limited safeguards in the COVID-19 Act. The first is that the Act itself and all instruments made under it expire on 31 December 2020 (s 25). The second is that no regulations made under the COVID-19 Act can be exercised to amend or override the Human Rights Act 2019 (Qld) (s 4(2)).

However, the COVID-19 Act contains a series of wide-ranging Henry VIII provisions allowing various other Acts to be amended by subordinate legislation (including by a regulation or notice), should that be required. Accordingly, under the COVID-19 Act, regulations can be made that may be inconsistent with or override existing primary legislation, except for the Human Rights Act.

This is a significant delegation of legislative power to the executive that lacks the levels of parliamentary oversight and scrutiny afforded to primary legislation. It therefore raises concerns in relation to the rule of law.

COVID-19 and the rule of law

It is impracticable to require every law to be enacted in accordance with the full legislative process, especially if the law in question deals with details that are prone to change frequently to respond to the rapidly changing and dynamic nature of the threat posed by COVID-19. Delegated legislation is preferred by governments to respond to emergency situations, such as COVID-19, because it can be made and amended quickly and efficiently. Furthermore, it can facilitate specialist input, including from the Chief Health Officer, about the specific challenges of the virus.

These rationales, however, should not lead us to overlook the importance of the rule of law. The rule of law can be understood in a ‘thin’ sense as involving purely procedural requirements or in a ‘thick’ sense as encompassing broader ideas of human flourishing. Core constitutional values such as certainty, accessibility and predictability are integral to both conceptions.

Furthermore, delegated legislation is difficult to reconcile with the principle of representative democracy, since it effectively sidelines the Parliament. Delegated legislation is also an exception to the separation of powers. It is made by the executive, including unelected departmental officials. It is not subject to close consideration and debate or the usual parliamentary oversight. 

The principal power of the Parliament in relation to delegated legislation is its capacity to scrutinise and disallow it. However, many of the Queensland measures need not be tabled in Parliament and are not disallowable. This substantially curtails the oversight of the Parliament and removes an important check on power. The increasing prevalence of Henry VIII clauses also results in a loss of accountability for policy decisions that would normally occur when primary legislation is enacted.

In the absence of the usual checks and balances on lawmaking imposed by parliamentary processes, it is especially important that we continue to hold governments to account in the exercise of their powers. Even in an emergency, governments must exercise their powers in accordance with the rule of law. A failure to do so can directly impact civil liberties. Furthermore, if normal procedures are not observed, it opens the door for derogations from the rule of law to continue even when the current emergency has ended.  

Dr Peta Stephenson is a Lecturer in the School of Law at the Queensland University of Technology.

Professor Jonathan Crowe is Professor of Law at Bond University and a regular Visiting Scholar at the University of Texas at Austin.

Suggested Citation: Peta Stephenson and Jonathan Crowe  ‘Queensland Public Health Laws and COVID-19: a Challenge to the Rule of Law’ on AUSPUBLAW (21 August 2020) <https://auspublaw.org/2020/08/queensland-public-health-laws-and-covid-19-a-challenge-to-the-rule-of-law/>